Copyright No Plaything: Celebrity Tattoos in Video Games

  • March 03, 2020
  • Tara Parker

Tattooed celebrities are abundant; from Shawn Mendes’s fan-designed butterfly, to Drake’s “6 God” praying hands, to the elaborate artwork displayed on the bodies of professional athletes like basketball star LeBron James (by one account more than half of all active NBA players have tattoos) — the list goes on. Whether it’s angels or demons, expressions of faith, or names of family and friends who’ve been loved or lost, there’s no doubt a celebrity’s body art is an integral part of their personal brand, appearance and public identity.

It may be surprising to some that tattoo art, like other forms of art, is capable of attracting copyright protection. In Canada and the U.S., if a tattoo is an original work of art (not copied), is fixed in any tangible medium (e.g., inked on skin), and is not in the public domain, then it qualifies for copyright protection. Although there has been some legal debate as to whether the human body is considered a “fixed medium” for copyright law purposes, generally speaking, and as noted by the U.S. federal court in Whitmill v. Warner Bros. Entertainment Inc. (the case that dealt with Mike Tyson’s tattoo in The Hangover movie), “[o]f course tattoos can be copyrighted … I don’t think there is any reasonable dispute about that.”

Since copyright laws generally grant the owners of artistic works the sole right to control the use and reproduction of their works in all media (subject to some limited exceptions, including those noted below), any unauthorized use or reproduction of a celebrity’s tattoo in an e-sports game (e.g., NBA 2K20), movie (e.g., The Hangover), or other media may result in a copyright infringement claim — not to mention a trademark, publicity or personality rights claim, depending on the circumstances.